Time, Place, and Manner

We’ve all met crazy lawyers while practicing. It’s an unfortunate part of the win-at-all-costs mentality and “the law is my life” culture that some legal commentators trace to the advent of the hostile takeover in the 1980s. Whether you’re a 3L on the cusp of graduation or a senior associate, you should have recognized by now that law is not a profession but a business- and part of that business involves pleasing clients that can be quite unreasonable. Though unreasonable clients can be found all across the legal spectrum, it’s the personal injury clients involved in a rear-end auto accident that always seem to make more noise than the CEO of a closely held corporation with annual revenues of $20,000,000.

The majority of law school graduates in my home state, Pennsylvania, eventually work in small firms, or as solo practitioners. Taking on personal injury cases is usually a necessity in order to pay the secretaries, keep the lights on, and establish ties with the local community. Even very sophisticated practices will usually have an inventory of low-level PI cases. When the daughter of the CEO running that $20 million company gets in a fender bender, that CEO expects her go-to lawyer to handle it. I’ve probably litigated a hundred or so PI cases, took dozens to arbitration, and did 3 solo jury trials for cases that were absolute dogs. For the sake of your own sanity, learning to manage the expectations of the unreasonable client is a necessity. Here’s a brief guide to the red flags that scream “problem PI client” and tips for getting that problem to work with you in resolving their case.

Problem: You have a MIST client (Minor Impact car accident/Soft Tissue injuries) that treated conservatively but believes his case is worth $100,000 because of his constant, lingering pain.

Solution: Empathize with the client and explain to him that soft tissue injuries are indeed real. However, the client needs to be informed that arbitration panels and juries don’t always buy them. The reason? Lawyers and lay people alike need to see objective evidence of an injury. An MRI will show a herniated disc. An x-ray will show a broken bone. A half-baked study known as an EMG might show evidence of a scary-sounding phenomenon known as ridiculopathy. Soft tissue swelling can be seen on an x-ray following an accident, but there’s no way to objectively prove that your client is still in pain 12 months post-accident when it occurred at 5 mph in a Wal-Mart parking lot. This lack of objective evidence puts your client at a clear disadvantage. The sooner the client realizes this, the better. Unless the client is a nun, an arbitration panel will see right through exaggerated testimony. Lawyers are bullshitters, and you can’t bullshit a bullshitter. If you wind-up in front of a jury, a good way to explain your client’s injury is to say, “Everyone knows what it feels like if you sleep on your arm or neck ‘wrong’ for a night. There’s soreness, there’s stiffness, there’s pain there. Now, imagine feeling that way every day for an entire year.” Then pray, because your client is going to be awarded $7,500 max.

Problem: The client makes a statement similar to, “I need to clear $400,000 on this lawsuit so I can pay off my mortgage and buy a new flatscreen before going on a cruise.”

Solution: The client needs to be told immediately following this horseshit that their mortgage and need for a new entertainment center has absolutely nothing to do with the settlement value, or jury value, of their case. This client has a certain number in mind and won’t easily let go of it. Despite the public’s perception, a personal injury lawsuit does not enter you into a lottery, or become the legal equivalent of Wheel of Fortune. This is the type of client that often chooses to ignore one very important fact, too: you need to establish liability before you get to the money part. They never consider the fact that since both parties claim that the light was green, it may affect the settlement value of the case, or get them a big, fat ZERO before a jury.

If the client is steadfast in their belief that a broken arm placed in a cast, no residuals, and two weeks of lost wages as a Catholic elementary school teacher is worth $750,000 on a bad day, run to the nearest legal database and find case abstracts with similar facts and injuries that were tried in your jurisdiction. Show them to the client. (One judge in Philadelphia used to publish a booklet every year of all the cases tried to verdict in his courtroom with a brief narrative and the result. It was very helpful in these situations.) Clients need to see reality in black and white. As their lawyer, it’s in your best interest to show them. Also, know the rules for comparative negligence in your jurisdiction. In some, a plaintiff’s jury award is reduced by the percentage of negligence attributable to them. In others, if the plaintiff is found to be over 50% liable then they automatically recover nothing.

Problem: The client has a high school education, yet disagrees with the opinions of her own treating physicians and offers her own diagnoses.

Solution: This is dangerous territory, and the client needs to know it. Playing “doctor” should be reserved solely for describing those things you did with your neighbor down the street in grade school. Juries and arbitration panels don’t respond well to witnesses who claim to know more than a highly-trained professional charged with maintaining the health of their patients, and a defense attorney isn’t going to recommend that the case be settled fairly if he thinks your know-it-all client will embarrass herself on the stand. This is especially true if the physician enjoys good standing in the community. The advice I give the client is, “Always state how you are feeling using as much detail as you can, but don’t ever say what you think. That’s why we have experts in your case.”

Problem: The client makes a statement similar to, “If some lady can get $2 million for spilling a cup of damn coffee, I can’t see why my broken wrist isn’t with at least worth $500,000.”

Solution: If repeatedly slamming your client’s head into the conference table until they bleed to death isn’t an option when the above statement is uttered, you need to rely on the facts and try to appeal the client’s common sense. Explain that the case was so widely reported because the case (and others like it) is an outlier, and there is media appeal for verdicts that are “outrageous” or decided by a “runaway jury.” The client needs to be told that their case is not likely to be one of those outliers. I haven’t seen Hot Coffee, but I’ve spoken with attorneys with first-hand knowledge of the case. The case was poorly litigated, since McDonald’s never took it seriously. First, they never moved to dismiss the corporate parent when only the local franchise in New Mexico should have been on the hook. This entitled the plaintiff’s attorney to the damning discovery documents that never should have been eligible for discovery in the first place. The verdict was lowered significantly on appeal, which no one ever talks about. The poor woman also had a number of skin graft procedures on her vaginal area.

If the client doesn't believe you when you explain that the mainstream media representations of these huge awards are incredibly misleading, then just give her a quick lesson on how to use the free Google Legal and push her out the door.